Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/20879/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 8 November 2016
On 16 November 2016

Before

UPPER TRIBUNAL JUDGE PERKINS

Between

ADENIYI OYEBANJO
(anonymity direction not made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr O Ogunbiyi, Counsel, instructed by Spring Solicitors LLP
For the Respondent: Mr P Armstrong, Home Office Presenting Officer
DECISION AND REASONS
1. I see no need for and do not make any order restricting publicity about this case.
2. This is an appeal brought with permission given by Upper Tribunal Judge Grubb against the decision of the First-tier Tribunal dismissing the appellant's appeal against a decision of the respondent refusing him a residence card. He said that he was entitled to a residence card because he was the former husband of an EEA national exercising treaty rights who had established a permission right of residence in the United Kingdom by working for at least five years, and this was the state of affairs when they divorced in September 2013.
3. I am satisfied, having had the opportunity of considering the papers and quizzing Mr Armstrong for an explanation of the decision, that the First-tier Tribunal was wrong.
4. There is a very substantial bundle of documentary evidence which is apparently credible and this shows that the appellant's former wife was declaring money to Her Majesty's Customs and Revenue for the period ending in the tax year April 2013. It does not strictly show when she started to earn money or indeed the source of the money that she was declaring. However there is evidence that she made a tax return for the year ending in April 2009 where she was not required to pay any tax because she had not earned sufficient money.
5. As is very often the case after a divorce, the former matrimonial partners are not on good terms or even in contact with each other and although there is no reason at all that gaps in the evidence should be assumed to be filled in a way that is to the appellant's advantage, gaps in the evidence should not be viewed as sinister or revealing. They are just that. They are gaps.
6. The relevant question is what is the most likely explanation for these tax returns having been made. The most likely explanation is that the appellant's then wife was in the United Kingdom doing something that required her to declare her income to the revenue and it is extremely likely that whatever she was doing was something was part of exercising treaty rights. The only thing we know she was doing was working as a hairdresser. The probable explanation is that she was working as a hairdresser throughout the five-year period. This is sufficient time to establish a permanent right of residence, which was the established status she had when the parties divorced. It follows as a matter of European law recognised in United Kingdom law that this appellant was entitled to a residence card as well as his former wife.
7. The First-tier Tribunal Judge, I find, erred at paragraph 17 when he did not accept the evidence as evidence of economic activity in the relevant period. It really is not clear how people have a liability to pay tax without some sort of economic activity and whilst not all forms of economic activity arise from exercising treaty rights it is quite clear that it is the most likely explanation in this case.
8. As I read the First-tier Tribunal's decision, he did not have another explanation. I think it more likely that the First-tier Tribunal Judge had lost sight of the relevant dates. Certainly before me we all struggled a little to work out precisely what period was covered.
9. Mr Armstrong had an opportunity to address me and could not see anything wrong in the course I propose to take and I have therefore set aside the decision of the First-tier Tribunal and allow the appeal because I am satisfied the evidence when read properly and applied to the appropriate dates can only, in the absence of contrary evidence, prove economic activity of a kind that arose from the exercise of treaty rights and that is sufficient to establish the case.
10. I therefore allow this appeal.

Notice of Decision
11. The First-tier Tribunal erred in law. I set aside the First-tier Tribunal's decision and I substitute a decision allowing the appeal.

Signed

Jonathan Perkins
Judge of the Upper Tribunal

Dated 15 November 2016